JUDGMENT

S.P. KURDUKAR, J.

(1) THE appellant-original Accused 2 along with six other accused persons was tried in Sessions Case Trial No. 45 of 1984 for having committed the murder of one Ramesh Haribhau Himane popularly known as "Ramesh Patil" resident of Village Bhari District Yavatmal in the evening of 6/1/1984. The appellant and original Accused 1, 3 and 4 were charged under S. 302/34 of the Indian Penal Code whereas remaining three accused persons were charged for offences punishable under S. 201, 202 and 212 of the Indian Penal Code. Udeyshankar Dixit-original Accused 1, however, was murdered during the pendency of the trial hence it abated against him. The trial court by its judgment and order dated 8/7/1986, acquitted all the accused persons except the appellant who was convicted under S. 302/34 of the Indian Penal Code, and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 1,000.00. The appellants appeal to the High court of Bombay. bench at Nagpur, came to be dismissed on 13/2/1988. It is against this judgment and order of the High court, the appellant on obtaining special leave has filed this appeal

(2) THE facts of the prosecution case lie in a very narrow compass: Ramesh Patil (since deceased) was allotted 15 acres of land in Village Bhari situated at a distance of about 6 kms from Yavatmal on Yavatmal-Pandhar- Kawada Road and was doing cultivation. Haribhau (Public Witness 2 is the father of Ramesh Patil who was then residing in his own house at Yavatmal. Ramesh Patil used to go to Village Bhari everyday at about 11.00 a.m. and would return at about 5.30 p.m.

(3) IT is alleged by the prosecution that in the year 1978, Ramesh Patil along with six other persons of whom some are prosecution witnesses in the present case, was prosecuted under Section 307 of the Indian Penal Code for having attempted to commit the murder of Udeyshankar Dixit (A-1. However, on the conclusion of the said trial, Ramesh Patil and other accused persons were acquitted. Since then, the two rival groups were on inimical terms and, therefore, Ramesh Patil apprehended danger to his life from Udeyshankar Dixit and the appellant

(4) IT was then alleged by the prosecution that on 6/1 /1984. Ramesh Patil as usual was returning on his bicycle to Yavatmal at about 6.00 p.m. by Yavatmal- Pandhar-Kawada Road. Arvind Mangrulkar (Public Witness 6 and Dadarao Thakre (Public Witness 7 resident of Village Bhari had then come to Yavatmal at about 3.00 p.m. to watch a matinee show in Sham Talkies. After the matinee show, they were going back to their Village Bhari double seat on a bicycle of Arvind Mangrulkar (Public Witness 6. When they came near the octroi post, two Lunas coming from behind overtook them. Udeyshankar Dixit was driving the Luna of blue colour and A-3 was the pillion rider. The appellant was riding on another Luna of brown colour and A-4 was the pillion rider. Both these Lunas went in the direction of Village Bhari. Arvind Mangrulkar (Public Witness 6 and Dadarao Thakre (Public Witness 7 stopped near the bridge for answering natures call and when they crossed the bridge, heard the shrieks "bachao-bachao" coming from the opposite direction. On proceeding further they saw that the two Lunas which overtook them were parked on the road facing Yavatmal and one person who was lying on the ground at the end of the road, was Udeyshankar Dixit and the appellant was assaulting him with knife. Anil and Suresh were standing nearby. After seeing the incident for about a minute or so, Arvind Mangrulkar (Public Witness 6 and Dadarao Thakre (Public Witness 7 proceeded to their Village Bhari and there they came to know from the villagers that the person who was assaulted on Yavatmal-Pandhar-Kawada Road was. Ramesh Patil

(5) SURESH (Public Witness 1 who returned at about 6.30 p.m. from Village Waihatola learnt from Kashinath (Public Witness 4 that Ramesh Patil was murdered and his body was l